Income Tax Assessment Act 1997

Div 355 inserted by No 93 of 2011, s 3 and Sch 1 item 1, effective 8 September 2011.

No 93 of 2011, s 3 and Sch 4 items 1 to 6 contains the following application, savings and transitional provisions:

Schedule 4 - Application, savings and transitional provisions

Part 1 - Application provisions

1 Application of repeals and amendments  
(1)
The repeals and amendments made by this Act apply:

(a) so far as they affect assessments - to assessments for income years commencing on or after 1 July 2011; and

(b) so far as they relate to income years but do not affect assessments - to income years commencing on or after 1 July 2011; and

(c) otherwise - to acts done or omitted to be done, states of affairs existing, or periods ending on or after the commencement of the first income year commencing on or after 1 July 2011.

Note:

For the purposes of an assessment for an income year commencing on or after 1 July 2011, regard may still be had to acts done or omitted to be done, states of affairs existing, or periods ending during an earlier income year. For example, regard may be had to expenditure incurred by other entities in income years commencing before 1 July 2011 for the purposes of paragraph 355-415(1)(b) of the Income Tax Assessment Act 1997 .

(2)
However, each of the following applies in relation to the 2011-12 financial year and all later financial years:

(a) section 29E of the Industry Research and Development Act 1986 (as inserted by Schedule 2);

(b) the repeal of paragraph 39H(b) of the Industry Research and Development Act 1986 ;

(c) section 46 of the Industry Research and Development Act 1986 (as amended by this Act).

Part 2 - General savings provisions

2 Object  
2
The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:

(a) any act done or omitted to be done; or

(b) any state of affairs existing; or

(c) any period ending;

before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.

3 Making and amending assessments, and doing other things etc., in relation to past matters  
(1)
Even though a provision is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003 ):

(a) making or amending an assessment (including under a provision that is itself repealed or amended);

(b) exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);

in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

Note:

Examples of things covered by this subitem are as follows:

(a) an eligible company may object under Part IVC of the Taxation Administration Act 1953 in an income year commencing on or after 1 July 2011 about a notice given under former section 73I of the Income Tax Assessment Act 1936 for an income year commencing before 1 July 2011;

(b) an eligible company seeking registration under former section 39J of the Industry Research and Development Act 1986 for an income year commencing before 1 July 2011 may do so during an income year commencing on or after 1 July 2011;

(c) Innovation Australia may give a certificate under former section 39M of the Industry Research and Development Act 1986 in an income year commencing on or after 1 July 2011 about research and development activities registered for an income year commencing before 1 July 2011.

(2)
Even though a provision is repealed or amended by this Act, the repeal or amendment is disregarded so far as it relates to a state of affairs:

(a) that exists after the repeal or amendment applies; and

(b) that relates to:

(i) an act done or omitted to be done; or

(ii) a state of affairs existing; or

(iii) a period ending;

before the repeal or amendment applies.

Note:

Examples of things covered by this subitem are as follows:

(a) an amount may be included in an eligible company ' s assessable income under former subsection 73BF(4) of the Income Tax Assessment Act 1936 for an income year commencing on or after 1 July 2011 if the company receives in that income year an amount for the results of research and development activities for which the company had deductions under former section 73BA of that Act in an income year commencing before 1 July 2011;

(b) an eligible company ' s deduction under section 73B of the Income Tax Assessment Act 1936 for expenditure incurred during an income year commencing before 1 July 2011 is reduced because of section 73C of that Act if, in an income year commencing on or after 1 July 2011, the company receives a recoupment of that expenditure from the Commonwealth.

(3)
To avoid doubt, this item extends to the repeal of subsection 286-75(3) , and paragraph 286-80(2)(b) , in Schedule 1 to the Taxation Administration Act 1953 . In particular, if, in a particular case, the period in respect of which an administrative penalty is payable under subsection 286-75(3) in that Schedule:

(a) has not begun; or

(b) has begun but not ended;

when those provisions are repealed, then, despite the repeal, those provisions continue to apply in the particular case until the end of the period.

4 Saving of provisions about effect of assessments  
4
If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies. 5 Repeals disregarded for the purposes of dependent provisions  
5
If the operation of a provision (the subject provision ) of any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003 ) made under any Act depends to any extent on a provision that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision. 6 Schedule does not limit operation of the Acts Interpretation Act 1901  
6
This Schedule does not limit the operation of the Acts Interpretation Act 1901 .

Subdiv 355-C inserted by No 93 of 2011, s 3 and Sch 1 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Div 355 heading.

S 355-100(1) amended by No 92 of 2020, s 3 and Sch 5 item 21, by repealing para (c) and (f), effective 1 January 2021 and applicable in relation to assessments for income years commencing on or after 1 July 2021. Para (c) and (f) formerly read:

(c) section 355-315 (balancing adjustment for R & D assets);

(f) section 355-525 (balancing adjustment for R & D partnership assets);

S 355-100(1) amended by No 92 of 2020, s 3 and Sch 4 items 4 - 6, by substituting " the R & D entity ' s *corporate tax rate for the income year, plus 18.5 percentage points " for " the *R & D entity ' s *aggregated turnover for the income year is less than $20 million (and item 2 of this table does not apply) " in cell at table item 1, column headed " The percentage is: " , " the R & D entity ' s *corporate tax rate for the income year " for " 38.5% " in cell at table items 2 and 3, column headed " The percentage is: " and substituting notes 1 and 2 for the note, effective 1 January 2021 and applicable in relation to assessments for income years commencing on or after 1 July 2021. The note formerly read:

Note:

The tax offset will be a refundable tax offset if the percentage applicable to the entity is 43.5% (see section 67-30).

S 355-100(1) amended by No 55 of 2016, s 3 and Sch 22 items 1 - 4, by substituting " 43.5% " for " 45% " in cell at table item 1 and " 38.5% " for " 40% " in cell at table items 2 and 3, column headed " The percentage is: " , and substituting " 43.5% " for " 45% " in the note, applicable in relation to assessments for income years commencing on or after 1 July 2016.

S 355-100(1) amended by No 124 of 2013, s 3 and Sch 11 item 55, by inserting " at any time during the income year " in table item 2, applicable in relation to an R & D entity ' s assessments for income years commencing on or after 1 July 2013. This amendment does not affect by implication the interpretation of the Income Tax Assessment Act 1997 in relation to assessments for earlier income years.

S 355-100(1A) inserted by No 92 of 2020, s 3 and Sch 4 item 7, effective 1 January 2021 and applicable in relation to assessments for income years commencing on or after 1 July 2021.

S 355-100(2) amended by No 92 of 2020, s 3 and Sch 4 item 8, by substituting " However, if the total amount mentioned in subsection (1) is less than $20,000, the *R & D entity is instead entitled to a *tax offset for the income year, worked out in accordance with subsections (1) and (1A), as if that amount were instead " for " However, if the total of those amounts is less than $20,000, the *R & D entity is instead entitled to a *tax offset for the income year equal to that percentage of " , effective 1 January 2021 and applicable in relation to assessments for income years commencing on or after 1 July 2021.

S 355-100(3) (including the note) substituted by No 92 of 2020, s 3 and Sch 4 item 9, effective 1 January 2021 and applicable in relation to assessments for income years commencing on or after 1 July 2021. S 355-100(3) formerly read:

355-100(3)
Despite subsection (1), if the total of those amounts exceeds $100 million, the *R & D entity is instead entitled to a *tax offset for the income year equal to the sum of:

(a) that percentage of $100 million; and

(b) the product of the excess and the *corporate tax rate.

Note:

The R & D entity may be able to reduce related amounts that would otherwise be:

(a) included in its assessable income because of a balancing, or feedstock, adjustment; or

(b) payable as extra income tax because of an R & D recoupment;

(see section 355-720).

S 355-100(3) inserted by No 13 of 2015, s 3 and Sch 1 item 4, applicable in relation to an R & D entity ' s assessments for income years commencing on or after 1 July 2014.

S 355-100 inserted by No 93 of 2011, s 3 and Sch 1 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Div 355 heading.